Wrong Jury Instruction Given in Medical Malpractice Case But Not Reversible Error

Melvin Jones received a cervical laminectomy on Feb. 6, 2008 by surgeon Dr. Martin Luken. Dr. Charles Beck, an internist at the same hospital, evaluated Jones after the surgery. Jones developed gastrointestinal issues, and Dr. Beck ordered a series of tests. Dr. Beck remained involved with Jones’s care over the next several days.

Dr. Beck had a scheduled vacation, and so he turned over the gastrointestinal care to Dr. Shibban Ganju. Dr. Ganju ordered additional tests, but shortly afterwards, Jones’s colon perforated. Because of the colon perforation, Jones had his colon removed and had a permanent ileostomy tube installed. On Dec, 4, 2008, Jones and his wife filed a medical malpractice lawsuit against Drs. Beck and Ganju as well as the hospital in which he had received care.

In the lawsuit,. Jones alleged that the doctors chose not to properly treat and diagnose his condition. His wife, Loleather Jones, filed a claim for loss of consortium. Both the hospital and Dr. Ganju settled the case before trial and left Dr. Beck to defend at trial.

In the lawsuit and supported by an expert, Jones claimed that Dr. Beck had been negligent for choosing not to insert an NG-tube, a procedure that often remedies colonic distention and would have, according to the witnesses, prevented the perforation.

Dr. Beck produced his own witness who testified at trial that the doctor behaved “within the standard of care” and noted that Dr. Beck deferred treatment to Dr. Ganju. The trial court found in favor of Dr. Beck, and Jones appealed.

Jones raised three issues on appeal. The first was the dismissal of a juror for what Jones claimed was for “religious reasons.” The juror in question was seen to speak to the defendants and gave a “thumbs up” to them.

While there was a portion of the questioning that related to the devoutness of the juror and the fact that she had a Bible with her in the jurors’ box, the appellate court found that the trial judge was correct in dismissing the juror for communicating with the defendants. The appellate court found no abuse of discretion.

The second issue was whether the court had erred in allowing Dr. Beck’s witness to testify that an NG-tube was “not medically indicated.” Jones argued that, because the witness failed to reveal a specific basis for the opinions, “it should be treated in violation of Illinois Supreme Court Rule 213(f)(3), which requires that the party calling the witness identify the conclusions and opinions of the witness and the basis therefore.”

The court found that Jones would have been able to identify the claims that Dr. Beck’s expert witness laid out and was not unfairly disadvantaged in cross-examination. Again, the court’s view on this was whether it was an error and an abuse of discretion that prejudiced the jury and would have changed the outcome. The appellate court didn’t think it changed the outcome.

The last issue on appeal was whether the trial judge erred in providing the jury with an instruction on “sole proximate cause.” Sole proximate cause is used when another individual is pointed to as cause of the injury. Sole proximate cause is available only where the evidence shows that someone else is solely responsible for the injury to the plaintiff.

The appellate court found this to be inappropriate since even if Dr. Ganju had been found negligent, that would not have superseded or eliminated Dr. Beck’s negligence. The court acknowledged that the sole proximate cause instruction had been given in error, but found that it was not a reversible error, because here the court believed that the jury would have found for the defendant because of a lack of proof of negligence. There was no special interrogatory given to the jury.

Since there was no showing that the jury blamed Dr. Ganju or considered sole proximate cause in rendering its verdict, despite that the instruction was delivered in error to the jury, there was no indication of prejudice or harm. Therefore, the appellate court affirmed the decision of the trial court that found in favor of Dr. Charles Beck.

Kreisman Law Offices has been handling medical negligence cases, nursing home abuse cases, hospital negligence cases, wrongful death cases and birth injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Rosemont, Rolling Meadows, Bolingbrook, Romeoville, Joliet, Waukegan, Naperville, Lemont, Richton Park, Chicago (Rogers Park, Lincoln Square, Hyde Park, Greek Town, Bronzeville, Gresham, Garfield Park), Maywood and Blue Island, Ill.

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